Plumstead Wawa ruling impacts Bensalem zoning change

Friday

A petition to add fuel sales to a Street Road Giant supermarket gives credence to claims a decision over a controversial proposed Wawa in Plumstead could impact other municipalities.

As Plumstead officials continue their appeal of a Bucks County Court of Common Pleas ruling on gas sales at convenience stores, the decision might already have a ripple effect in at least one other area town.

The township allows "convenience food stores with gasoline dispensing facilities" in that area, but property owner Echo Bensalem LLC still referenced the appeal between Plumstead and a Verrichia Co. partnership to support its request.

Echo owns the 10.62-acre property and its petition for the zoning change allowing fuel sales for supermarkets over 50,000 square-feet would "retain Giant as a tenant ...."

Planning Commission Chairman Harry Kramer said Friday the proposed changes would likely only impact this one project, and added that Echo would be connecting that property to an adjacent shopping center as part of its updated plan.

Planning commissions are only an advisory board, requiring any official changes to be approved by the township's governing body.

While the Bensalem petition and the Plumstead Wawa plan share little in common, the Bensalem case is possibly the first zoning change foreshadowed by Verrichia's attorneys in March.

The developer proposed a 4,700-square-foot Wawa with up to 10 gas pumps at the intersection of state Route 313 (Swamp Road) and Ferry Road, but Plumstead zoning laws prohibit gas sales in that particular zoning district.

State law prohibits a town from banning any legal land use, and Plumstead argued its zoning followed the law by allowing gas sales elsewhere in the township.

The township's zoning hearing board upheld the local laws in September 2017, prompting the developer to appeal to the Bucks County Court of Common Pleas — which was heard by Chester County Judge Robert Shenkin because Bucks County Judge Jeffrey Trauger owned one of the properties at the proposed development.

Julie Von Spreckelsen, of Eastburn and Gray, said shortly after Shenkin's ruling that the decision might set a new precedent for other developers outside Plumstead.

“The decision marks one of the first legal instances of Pennsylvania courts recognizing that motor vehicle fuels are a product now widely sold by retail stores,” Von Spreckelsen said.

Unlike court decisions, local zoning boards don’t rely on precedent and have to review each application on its own. Even if Plumstead’s zoning board sided with the developer in 2017, the board could still deny a nearly identical application later for the same reasons as it did in this case.

Von Spreckelsen clarified Friday that Shenkin's ruling only has "persuasive" value as it stands now, but the outcome of Plumstead's appeal to the Commonwealth Court could give Shenkin's ruling more weight in zoning appeals statewide.

Plumstead supervisors voted 3-2 at a late March meeting to appeal Shenkin's ruling to the state court, giving the township another chance to keep its zoning in place.

“It’s because I believe that we have exclusionary zoning and I believe that we’ll lose in the next level in court,” Lykon said previously.

Von Spreckelsen could not comment on the specifics of that ongoing appeal Friday.

Another zoning appeal in Hatboro had a similar outcome as Plumstead, after Montgomery County Judge Todd Eisenberg reached a similar conclusion as Shenkin over a Wawa at the corner of York and Horsham roads.

The proposed Hatboro Wawa was another project proposed by Verrichia where attorneys made the same argument of a de facto ban on modern gas stations, according to a Montgomery County news report online.

That story states Hatboro's council is expected to vote whether or not to appeal Eisenberg's ruling to the Commonwealth Court as well.

Less than a month after the township's appeal was filed, the developer told this news organization that settlement negotiations had been happening over the past year — with the most recent talks occurring between March 28 and April 12.

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